* Concurring in judgment only.

** Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5th Cir.

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 12, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-20605

United States of America

Plaintiff-Appellee

v.

Jorge Noe Chinchilla-Galvan, also known as Oscar

Defendant-Appellant

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:06-CR-44

Before DEMOSS, DENNIS, and OWEN,* Circuit Judges.

DENNIS, Circuit Judge:**

Chinchilla-Galvan appeals his sentence, alleging a number of errors in the

district court’s upward departure from the sentencing guidelines advisory range.

Finding that the district court plainly erred in failing to give the notice required

under Rule of Criminal Procedure 32(h), this court VACATES ChinchillaGalvan’s sentence and REMANDS the issue. 

I. FACTUAL AND PROCEDURAL BACKGROUND
No. 06-20605

2

Jorge Noe Chinchilla-Galvan was charged in a two-count indictment with

possessing counterfeit and falsely made alien registration receipt cards on May

6, 2005, and June 3, 2005. He pleaded guilty to both offenses without the benefit

of a plea agreement. 

The presentence report (PSR) assigned Chinchilla-Galvan a base offense

level of 11. Chinchilla-Galvan’s offense level was enhanced by 3 levels because

his offense involved between 6 and 24 documents. Chinchilla-Galvan’s offense

level was then reduced by 2 levels for acceptance of responsibility.

Chinchilla-Galvan’s total offense level of 12, combined with his criminal history

category of I, yielded an advisory sentencing guideline range of 10 to 16 months

imprisonment. The PSR did not identify any factors warranting departure, and

Chinchilla-Galvan did not object to the PSR. 

At sentencing, Chinchilla-Galvan requested that the district court

sentence him to 10 or fewer months of imprisonment, and the Government

recommended a 10-month term. Without prior notice, the district court imposed

a 3-level upward departure in Chinchilla-Galvan’s offense level. With a total

offense level of 15, Chinchilla-Galvan’s advisory sentencing guideline range

became 18 to 24 months of imprisonment. The district court sentenced

Chinchilla-Galvan to serve a 24-month term for each count of conviction, to run

concurrently,to be followed by a 3-year term of supervised release for each count

of conviction, also to run concurrently. The district court overruled

Chinchilla-Galvan’s objection to the reasonableness of his sentence.

Chinchilla-Galvan appealed.

II. DISCUSSION

Before this court, Chichilla-Galvan challenges the district court’s

calculation of his sentence under the sentencing guidelines, the reasonableness

of his sentence, and the district court’s failure to give notice that it was
No. 06-20605

3

considering an upward departure. Because we find plain error as to the last

issue and remand accordingly, we do not address the other claims.

A. Standard of Review

The district court’s failure to give notice of its intent to depart from the

sentencing guidelines is subjectto plain error review.See UnitedStates v. Olano,

507 U.S. 725, 730 (1993). Generally, this court reviews de novo such claims that

a defendant was not provided reasonable notice, United States v. Andrews, 390

F.3d 840, 844 (5th Cir. 2004), but when a defendant fails to object to a lack of

notice, the standard is plain error review. United States v. Olano, 507 U.S. 725,

730 (1993). Since Chinchilla-Galvan did not object to the lack of notice, we

review the district court’s conduct for plain error.

B. Analysis

To prove plain error a defendant must satisfy three elements: (1) an error

(2) that is clear and obvious (3)that affects substantial rights. See United States

v. Reyna, 358 F.3d 344, 350 (5th Cir. 2004). If a defendant meets these criteria,

this court has discretion to correct the error and will do so if it seriously affects

the “fairness, integrity, or public reputation of judicial proceedings.” Id.

As the Government concedes, Chinchilla-Galvan meets these plain error

standards. The district court’s failure to give any presentencing notice of its

upward departure constitutes a clear and obvious error in violation of Federal

Rule of Criminal Procedure 32(h), which states:

Before the court may depart from the applicable

sentencing range on a ground not identified for departure

either in the presentence report or in a party’s rehearing

submission, the court must give the parties reasonable notice

that it is contemplating such a departure. The notice must

specify any ground on which the court is contemplating a

departure. 
No. 06-20605

4

Fed. R. Crim. P. 32(h). We find that the district court’s failure to give notice of

its intent to depart upwardly constitutes plain error. 

The Government concedes as much, but argues that this court should

decline to remedy the error because it does not seriously affect the “fairness,

integrity, or public reputation of judicial proceedings.”

We disagree. The district court’s disregard for Rule 32(h), affording

Chinchilla-Galvan no notice before choosing a sentence substantially above the

advisory guideline range, gave Chinchilla-Galvan no meaningful opportunity to

prepare a response or objection to the departure. This clearly affected the

fairness, integrity, and reputation of judicial proceedings. 

Accordingly, we VACATE Chinchilla-Galvan’s sentence and REMAND for

resentencing.